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Internet Archives and Copyright

Professor I. Trotter Hardy

Copyright © 1997 I. Trotter Hardy. Professor Hardy is Professor of Law at the William and Mary School of Law, Williamsburg, Virginia 23187. E-Mail address:

Copyright law overview

Copyright law can be thought of in three parts: What kinds of "things" can be copyrighted? How does one get a copyright in those things? And what rights does a copyright owner have?

Note that just because something is the "kind of thing" that can have a copyright does not necessarily mean that it does have a copyright. For example, a "Shakespeare play" is the kind of thing that can be copyrighted, but it has long since passed into the public domain (in fact, it was written at a time in English history when there was no such thing as "copyright" in any event).

What kinds of things can be copyrighted?

Copyright applies to "original works of authorship." That phrase has historically been given a very broad reading, so that quite a lot of things are at least potentially subject to copyright protection. The Copyright Act lists examples of types of "works" that qualify: literary works; musical compositions; dramatic works; pantomimes and choreographic works; pictorial, sculptural, and graphic works; audio-visual works; sound recordings; and architectural works. Even these fairly extensive examples do not convey the full extent of copyright’s scope. For example,

  1. "literary works" includes not only what would ordinarily be thought of as "literature" (novels, poems, stories, essays, etc.) but also any "works expressed in words, numbers, or other verbal or numerical symbols or indicia," which includes computer programs and occasionally even things like lists of company inventory numbers.
  2. "Musical compositions" includes both lyrics and melody or tune.
  3. "Dramatic works" includes things like plays, screenplays, and TV scripts.
  4. "Pantomimes and choreographic works" includes ballets, dances, or mime skits.
  5. "Pictorial, sculptural, and graphic works" includes not only paintings, drawings, and prints, but also sculpture, maps, diagrams, blueprints, and other technical drawings.
  6. "Audio visual works" includes movies, film strips, slide presentations, and presumably multi-media CD-ROM packages.
  7. "Sound recordings" includes the actual sounds in a recording–that is, the particular tempo, arrangement, dynamics, and so on, as distinct from the musical composition. A "musical composition" can exist solely as sheet music; but a "sound recording" has to be an actual record of sound: vinyl record, audio-cassesste tape, audio CD, etc.
  8. "Architectural works" includes the design of a building, as represented by the building itself, or by the plans. The plans would also be copyrightable as a "pictorial, sculptural, and graphic work" (in this case, a pictorial or graphic work).

What cannot be copyrighted?

The list of things that are potentially subject to copyright’s protection is so extensive that people often wonder what isn’t copyrighted. Things that are not copyrighted include:

  • Ideas and facts
  • Works whose copyright term has expired
  • Works of the U.S. Government
  • Laws (statutes, cases, regulations, constitutions)
  • Things authors have dedicated to the public domain

The Copyright Act specifies that

"In no case does copyright protection extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery."

In other words, if you have a great idea and write it up in an article, others are free to talk about and write about your idea–they just can’t copy any substantial part of the words in your article to do so. The same thing applies to "facts," which would fall in the area of what the law calls "discoveries." If you as a historian learn amazing things about some historical event, things that no one else knows, you may write an article about the event, and you may stop others from reproducing your article’s words, but you may not stop others from sharing, talking about, writing about, etc. the new facts that you discovered.

The list of potentially copyrightable things is limited to potentially copyrightable things. A novel may be copyrighted, for example, but if the term of copyright has expired, then the novel "falls into the public domain" and thereby loses all copyright protection. Works in the public domain may be freely copied in whole or in part.

The exact term of a copyrighted work depends on when it was written or published. In general, before 1978 (when the law was changed) copyright lasted for 28 years, and could optionally be renewed for a second term of 28 years–a possible 56 years total. After 1978, the term is no longer a fixed number of years but lasts for the lifetime of the author plus another 50 years. Proposals are afloat to lengthen that term to "life plus 70 years."

One reason for the change from a fixed term of years, to a variable term that depends on the author’s life span, is that all of an author’s works will go into the public domain at one time–50 years after the author’s death.

Also, when a book or other copyrighted work has been published for at least 75 years, you can write to the Copyright Office and ask whether the Office has any record that the author is living or dead. If the Office has no such records, you may conclusively presume that the author has been dead for at least 50 years and you cannot be sued even if this presumption later turns out to be wrong.

Another big exception to copyright is "works of the U.S. government." U.S. Government reports, memos, documents, rules, agency publications, and the like are not copyrighted and may be freely copied and used by anyone. If you want to repackage and sell IRS bulletins on tax law or Agriculture Department booklets on milking cows, you may (others have).

State governments are not prevented from copyrighting their materials by the Copyright Act. But court decisions have long since established that "laws" (including statutes, court opinions, and regulations) are in the public domain. And as a practical matter, most states do not attempt to assert copyright over anything except perhaps computer software or other high-cost items.

How do you get a copyright?

You don’t "get" a copyright; this is a common misconception. You either "have" a copyright or you don’t. If you create something original that is copyrightable, and you "fix" it in some medium of expression (write it down; sing it into a tape recorder; video tape it; etc.) then whatever you created is copyrighted as soon as it is "fixed." If you are writing the great American novel on your word processor, then the novel is being copyrighted as you enter it into your computer. Computer entry, even into the computer’s temporary memory, is usually considered "fixed" enough for copyright purposes, and most definitely is "fixed" when it is saved to a hard disk. If you like to write with a pencil, whatever you write is being copyrighted as it is being written–writing with a pencil is a kind of "fixation."

Of course, if you are copying something created by someone else, then the "something" you are copying is not original to you. Hence you would not be creating a copyrighted work in that circumstance.

So what do people contact the Copyright Office for?

You may, if you like, register a copyright with the Copyright Office. That requires a two-page form and (currently) a $20 fee. But registering a copyright is not the same thing as having a copyright. Remember you have a copyright whenever you fix an original work of authorship–write it down, record it, etc. Registration is handy for a few reasons, though far from essential. If you think you might ever sue anyone for copyright infringement, registering early offers some advantages in the amount of damages you might be able to collect.

What is the meaning of the little phrase "© 1997 M. Smith"?

The expression "© 1997 M. Smith" or its equivalent "Copyright 1997 M. Smith" or "Copr. 1997 M. Smith," is called the "copyright notice." At one time, you were required to put such a notice on any work you wanted to protect whenever you published the work. Others who saw a published work without such a notice were entitled to treat the work as being in the public domain.

The original thinking behind the requirement was to put others "on notice" that you intended to preserve your copyright rights. In other words, our law carried a presumption that a published work was not copyrighted unless it carried the copyright notice.

Since 1989, however, our laws no longer require a copyright notice. At that time we reversed the presumption: the current presumption is that any work, published or not, is copyrighted by its author, unless the author indicates the contrary. Sometimes people do indicate the contrary by noting "This article may be freely copied," or "this article may be copied and distributed for educational purposes, as long as attribution is given to the author and a fee no higher than the cost of copying is charged," or "This program is shareware; it may be copied without limitation, but if you use it for more than 30 days you are required to pay the author $25," etc.

But in the absence of any such an indication, one must presume that if a work is the kind of thing that can be copyrighted, it is copyrighted.

Among other interesting consequences of this rule is the fact that every single (non-trivial) piece of e-mail sent over the Internet is copyrighted unless it says otherwise. Ditto with Web pages, Usenet newsgroup postings, and the like.

What rights does a copyright owner have?

Copyright owners have five basic rights and a sixth extraordinarily complicated right:

  1. to reproduce the work;
  2. to prepare derivative works based on the work;
  3. to distribute copies of the work to the public;
  4. to perform the work publicly (if it is the kind of thing that can be "performed," like a song or a play or a movie, and if it is not a "sound recording"–more on this complicated subject appears below)
  5. to display the work publicly; and
  6. if it is a "sound recording," to perform the work publicly by means of a "digital audio transmission."

"Reproduce" means "copy." The term applies to almost any instance of copying, including the making of a single copy of an article from a magazine by photocopying it, or downloading pages from a Web site, or scanning an image into digital form. Some of these activities do not necessarily infringe the copyright owner’s rights because they might be considered a "fair use" of the work (discussed below). But they all constitute "reproduction" and hence at least raise the question of whether they infringe any copyrights.

"Derivative works" includes anything that is "based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, … or any other form in which a work may be recast, transformed, or adapted." When a movie company wants to make a movie version of a book, the company must get the book author’s permission because otherwise the company would violate the author’s right to make derivative works. Similarly, anyone seeking to translate a book into another language must also seek the author’s permission or else infringe the author’s right to make derivative works.

Authors have the right to say when and how their works will be "distributed to the public." Obviously, this right was written into the law when the principal means of making money was to produce multiple copies of a work and "distribute" them (i.e., either sell, or rent, or lend, etc.) to the public. This continues to make sense when we think about books, CD’s, video cassettes, and other tangible embodiments of copyrighted works.

It makes less sense when we think about information that is "posted" to a Web site. This sort of thing obviously wasn’t contemplated when the current Copyright Act was adopted in 1976. Technically, the person doing the posting is not really "distributing" anything because they are just making a copy onto a Web-accessible machine. Moreover, the poster is not really making "copies" at all–if anything, it would be those who visit the site who make the "copies." So that leaves a bit of a question as to whether "posting" to a Web site constitutes "public distribution of copies."

The few indications we have so far are that courts will very likely interpret the Copyright Act’s language so that "posting" would indeed constitute "public distribution." If so, that would mean that posting another’s copyrighted work on a Web site without permission would be an infringement of the copyright owner’s right of "public distribution."

Posting on dorm room walls, on the Web

Among other things, this is counter-intuitive to many people. It is fairly common today for, say, a student to cut out a poster or picture of a movie star or Star Trek episode or similar thing and post it on a college dorm wall. Understandably, when students also have a "home page" on the Web, they think of doing the same thing there: getting a digital copy of a poster or picture and posting it on their Web site. They often want to know "What’s the difference? If it’s posted on my dorm wall, or posted on my Web site–who cares?"

Again, we do not have clear answers as to how courts would handle this situation, but my own instincts are that there are significant differences. Posting a physical copy of a picture on a dorm-room wall would be considered a "display" of the picture, but it would not be a public display. The copyright owner can only object to public displays, so there would be no infringement in the dorm-room case. Posting something to a Web site, however, as noted above, is likely to be seen as a "distribution" of the work, or perhaps a "display" of the picture. Either way, it would almost certainly be considered a public distribution or display, and hence it would be an infringement of the copyright owner’s rights.

Public performances of music and sound recordings

Perhaps the most counter-intuitive right of copyright owners is to object to the "public performance" of their works. "Perform" originally meant what most people think it means: putting on a play, for example, or singing a song. But over the years it has acquired a more technical meaning. It now means something like "making use of a work that unfolds through time."

For example, playing a CD on a CD machine is a "performance" of the works on the CD. Playing a video tape on a VCR is a performance of the movie (as is showing the movie in a movie theater, of course). Even if the "performing" is, as it is in these cases, only being done by a machine, it is still defined as a "performance" for copyright purposes. BUT: remember that the only right a copyright owner has is to object to public performances. That is why playing a CD or video tape at home does not violate the copyright owner’s rights–playing these things at home is a "performance" for copyright purposes, but it is a private, not a public, performance, and so it is not an infringement of anybody’s rights.

Sound recordings: not the same as "musical compositions"

Another thoroughly non-intuitive feature of authors’ rights is that although authors have a general right to object to public performances of their works, they do not have that right with respect to "sound recordings" specifically.

The typical "record" of music, whether on LP, tape, CD, or whatever, actually carries two copyrights. One is on the musical composition–the song, plus melody–and a second is on the way the particular sounds are preserved on the record–the arrangement, tempo, dynamics, harmonics, tonal variations, sound "color," and so on. If you look at the label on CDs and tapes, you will often see two copyright "notices," one with a "c" in a circle, like "©," and the other with a "p" in a circle (for which my word processor does not have the matching s